Lord Bassam of Brighton: My Lords, we have addressed those issues. My recollection is that when we passed into legislation the Nationality, Immigration and Asylum Act 2002, which provided for the test to be conducted, the noble Lord and his colleagues on the Liberal Democrat Benches thought that it was an extremely good idea. I thought that they, like us, shared an understanding that engaging with people and enabling them to understand the fundamentals of what it means to be a British citizen were very important. We take those matters seriously, as, I am sure, does the noble Lord.

Lord Warner: My Lords, a new sexual health campaign focusing on younger men and women was announced in the Government's public health White Paper Choosing Health The Department of Health will work with the agency approved, and with business, NHS and voluntary sector partners to deliver the campaign as part of the Government's drive to modernise and transform sexual health services in England. We expect to launch the campaign next spring. It will be a high profile media campaign, focusing on the risks of unprotected sex, and the benefits of using condoms to avoid the risk of sexually transmitted infections, including HIV, and unintended pregnancies.

Baroness Neuberger: My Lords, earlier this year, there was an attempt among some area child protection committees to issue protocols, which the Government are now considering, that young people under 18 should have their health advice to some extent discussed with other professionals, and enquiries made to the police. Can the Minister assure us that true confidentiality will be maintained in matters of sexual health and young people?

Lord Drayson: My Lords, there are no plans to reconsider procedures for investigating allegations concerning events at Deepcut. In addition to the investigation by the Surrey Police and work by the Army, the Adult Learning Inspectorate and the Select Committee for Defence have each reported on initial training, care and welfare. Moreover, recognising the degree of public concern, the Armed Forces Minister asked Nicholas Blake QC independently to review the circumstances surrounding the four deaths. Mr Blake has made substantial progress with his wide-ranging review and will report shortly.

Lord Drayson: My Lords, a considerable amount has been done in response to the recommendations that have come out of these reviews. We have improved the supervisory ratios of trainers within the training establishments, and we have implemented a course to improve the training of trainers—and that is something that is being rolled out throughout the Army establishment. I do not know whether that process has included the Royal Marines, but I shall write to the noble Lord on that matter.

Lord Foulkes of Cumnock: My Lords, would the Minister agree that we are talking here not about bullying, but about allegations of what appears to be institutionalised violence and victimisation. Would the Minister, along with his honourable and right honourable colleagues, give further serious consideration to that matter, and to the request from the noble Lord opposite? It is a matter of very serious concern to many Members on all sides of the House.

Lord Drayson: No, my Lords, I do not believe that to be the case—and the reason why I do not believe it to be the case is that it is not a factor that has been raised in any of the reviews that have been highlighted. The Armed Forces take extremely seriously the quality of leadership in our training establishments; after all, it is fundamental to the capability and performance of our Armed Forces. We do not believe that there is any trade-off that can be contemplated in terms of the demand in operations. This is about making sure that we have rigorous resources, training and procedures in place to minimise any bullying that may take place.

Baroness Byford: My Lords, I thank the noble Lord, Lord Livsey, for moving the amendment. We had a good debate about the matter in Committee. I hope that the Government will consider the amendment sincerely, because the noble Lord has taken on board the question previously raised about legal costs and whether someone sorting out a dispute between commoners needs to be legally qualified. The noble Lord also mentioned subsection (2)(b) of his proposed new clause. That partly helps to resolve some of the comments made at the time.
	While we hope that there will not be too many cases where the commissioner will be needed, in reality they have been needed over the years. The Bill as it stands is the poorer without the amendment and I hope that the Minister will consider it favourably. If the Minister does not particularly like the precise wording, I do not suppose that the noble Lord, Lord Livsey, is tied to it. It is the thrust behind it which he seeks to promote. We on these Benches are certainly grateful to him for having included subsection (2)(b), which was, for some, a slight stumbling block in Committee.

Lord Bach: My Lords, before I respond to the amendment of the noble Lord, Lord Livsey, I point out that the Government's view is that the Bill has already been much improved in Committee and in the short while between Committee and Report from how it was when it began in your Lordships' House. I am extremely grateful to noble Lords from all side of your Lordships' House for their part in improving the Bill. I hope they acknowledge, in turn, that the Government have made some concessions on the Bill, which are clear from government amendments before the House today. Noble Lords should, I hope, feel that we have done what we said we would at Second Reading; that is, to listen to what noble Lords say—we are still in that listening process. After the experience of 40 years ago, it is more important to get the Bill right than to insist on our position in every situation, come what may.
	Amendment No. 1 brings us back to some familiar friends, the commons commissioners. Under the Commons Registration Act 1965, the amendment would vest the functions of the commissioners in a new body of adjudicators to be known as the commons inspectors. If I may revisit how we see applications under Part 1 of the Bill, which envisages the commons registration authority having the lead role in dealing with applications for amendment of the register. That is the same approach as that under the 1965 Act, which required registration authorities to deal with all applications for provisional registration.
	Regulations made under Clause 24 are likely to provide for such applications to be dealt with in one of several ways. We envisage that straightforward applications—for example, to register the variation of a right of common—will be determined by the authority. Similarly, we would expect the authority to deal with most applications for correction of the register.
	We envisage, however, that some applications will raise particularly difficult questions; either of fact or of law—or, perhaps, of both. That is particularly likely in the case of applications under Schedule 1 for deregistration of wrongly registered land or registration of waste land of the manor, which may require the tribunal to examine historical evidence, take evidence from witnesses and interpret matters of common law. The noble Lord, Lord Livsey, mentioned that schedule.
	Other applications may pose difficulties for the registration authority through conflict of interest. For example, an application under Clause 19 for correcting an error in the register may relate to land belonging to the authority itself. In these cases, regulations enable us to provide for the appointment of an independent person to do one of two things: to inquire impartially into the matter and to report back to the authority, which would make the final decision having regard to that report; or to inquire into the matter, and for the appointed person herself to determine the matter on the evidence before her.
	This is not a question of big government taking the matter out of local authorities' hands. It is not necessary that regulations provide for a prescriptive approach to these things. For example, they may provide for an authority to refer an application for the registration of a green to an independent person on its own initiative. Some local authorities have told us that such applications are very controversial, raise complex questions of both fact and law and are not matters that can satisfactorily be dealt with by council members. We envisage that regulations would enable the decision to be taken instead by the appointed person at their discretion. Similarly, if the authority was aware of a conflict of interest, it would be expected to refer the matter elsewhere for decision—that would be proper.
	We are already committed to consulting on the form of such regulations, and that will be the opportunity for registration authorities to talk to us about how these things should be handled. Noble Lords may remember that my honourable friend, Jim Knight MP, the Minister for Rural Affairs, in September announced our plans for assisting with financial and practical support for the establishment of an association of commons registration officers. We expect a strong, focal role in consultation for the proposed association. It is a little early for me to say exactly what the panel of independent persons will look like. I think it very likely that, as the noble Lord, Lord Livsey, envisages in Amendment No. 1, some panel members will have legal qualifications and others will not. Sometimes experience and awareness in matters of common land can count for as much as legal qualifications.
	It is clear to us that we will need to establish a panel, so the noble Lord is pushing at an open door. We cannot hope to have applications dealt with on an ad hoc basis by inspectors who come and go, but we do not need special powers to deal with this. We have a panel of inspectors determining public path orders, but they manage very well without an official title. As this House will know, a panel of inspectors deals with access appeals under Part 1 of CROW, but the powers in CROW are not dissimilar to those available to us under Clause 24—there is no "access inspectorate". We expect there to be a role for our panel of independent persons in taking forward work on other parts of the Bill. We are already committed to holding an inquiry into proposals for commons associations under Part 2 where a proposal is controversial or contested, and some applications for consent under Clause 38 will be referred to a hearing or inquiry.
	I know that there is great respect for the work of the commons commissioners—they are acknowledged to be fair, well informed and independent. We will seek to emulate those qualities in those who fulfil a similar role. Noble Lords will know that this Bill repeals the 1965 Act, and I am on familiar ground when I say that it is time to move on. Perhaps that has been said too much, but I emphasise that this Bill is about setting the scene for the next 40 years. The implementation of the Bill will be an exciting time for those with an interest in our common land, and there will be opportunities to create a panel of independent persons which meets the needs of the present and future rather than the past. That is absolutely in line with what the noble Lord, Lord Livsey, has asked for. We do not feel that we have to put it in the Bill in this way. I ask the noble Lord to have confidence in our plans and so to withdraw his amendment.

The Earl of Caithness: My Lords, perhaps I may seek clarification at this stage. My noble friend Lord Peel has just spoken to his amendment, which has not yet been moved. As we are at Report stage and can speak only once, I should be grateful for some clarification as I want to speak to the government amendments as well as others.

Lord Livsey of Talgarth: My Lords, I certainly agree with my noble friend Lord Greaves that the Government moved a considerable way in some respects, but this group of amendments is a mixed bag. Let us take, for example, what the Minister said about a statutory commons association and the power of veto. That is reassuring to some extent until one wonders what happens in the case of voluntary commons. They make up the greatest number of commons by far. I do not know of a statutory common in the whole of Wales, for example, although this power might encourage commons to become statutory. That may be an agenda. None the less, I and many other Members, I am sure, are concerned about the position of voluntary commons in this situation. We certainly take on board the delicate situation regarding SSSIs, but Natural England and the CCW taking land out of commission because of overstocking is a very contentious issue. Although I note that the Minister said that those bodies have no intention of acquiring the land for themselves, what about people's livelihoods in this situation? Many people with rights of common are small farmers who depend on the common to make a living. The reallocation of grazing rights to other commoners could be a recipe for huge disagreement and disgruntlement among the commoners, although I understand that sympathetic management may be what is required in those cases.
	We are in danger of causing depopulation or even conducting social engineering by environmental dictat. I am sure that that is not intended, but we are in danger of doing it. I am sure the Minister would agree that co-operation would be far better. When we talk about sustainable grazing, we need to think about sustainable people as well. In remote rural areas, they are often the only people to be found. We need to take their concerns on board.
	I note that the Government expressed a measure of agreement with the amendment of the noble Earl, Lord Peel. We certainly agree with it. I am very pleased that the Minister took note of the amendment of my noble friend Lord Greaves and said that he would respond positively to it. I thank him very much for that.
	I was disappointed by his reaction to Amendment No. 10 of my noble friend Lady Miller, which would give a commons association the first option to purchase the right of common. We feel strongly about this. I thank the noble Earl, Lord Caithness, the noble Lord, Lord Jopling, and the noble Baroness, Lady Byford, for their support on many of these matters.
	There is a variety of amendments in this group, some of which we welcome—and we certainly welcome the Minister's assurances on them—but others of which are contentious. I am sure that the Minister will realise that. But at this stage, I beg leave to withdraw the amendment.

Lord Inglewood: My Lords, prefacing what will I hope be my brief remarks this afternoon, I reiterate the welcome that I gave the Bill at Second Reading. As a number of noble Lords have said, it is overdue, coming 40 years after the Commons Registration Act 1965, which in turn was probably a further 40 years overdue, after the Law of Property Act 1925. I thank the Government for the non-partisan and pragmatic approach that they have taken to how they have dealt with matters of concern to various Members of your Lordships' House during the passage of the Bill. In particular, I commend the sound policy that in the case of commons "one size fits all" is not the right approach.
	That there is considerable variety in the commons of England and Wales should come as no surprise. After all, they have very diverse histories and are very far apart from each other. I came down from Cumbria this morning, and when I am here, I am closer to Paris than to my home—so we are not surprised that things are different there. The commons themselves have different roles in their agricultural communities, and how they have been managed over the years varies very considerably owing to the variations in the manorial system—because historically much of the administration was carried out in the manorial courts.
	In the case of severance, with which Amendment No. 6 deals, that plurality is already recognised in statute. As for Dartmoor, permanent severance of common rights is forbidden—and no one has ever suggested that this legislation should change the provisions that apply there. On the other hand, the Greenham and Cookham Commons Act 2002, which came on to the statute book only three years ago, permits it subject to certain tight constraints.
	We have here a precedent for a plural approach to the question whether permanent severance of rights of common should be allowed. What I propose as suitable under some circumstances, but not necessarily all, is that permanent severance of rights of common from one piece of land should be permitted, provided that they are subsequently attached to another piece of land that itself has appurtenant to it rights on the same common. In proposing that, I am fully aware of the need to balance all the relevant and important legal interests that exist in such circumstances—and we must remember the rights and concerns of all the parties that may be affected. But it is worth recalling that many common rights that will be affected by the general ban on severance, are in fact quantified appurtenant rights, which under the common law have in many cases for a century been capable of being severed. I understand that under the Commons Act 1876, large numbers of common rights sans nombre, subject to the provisions of statute, were converted into quantified rights—and under the common law it follows, as was made quite clear in Bettison v Langton, they could be severed.
	I am not for a minute suggesting that we should move back to a situation in which common rights can be simply indiscriminately severed from land. What I propose—and what the amendment intends—is to provide a framework in which it would be possible for the kind of thing that I described to take place if it was deemed appropriate to do so. I stress the words,
	"if it was deemed appropriate to do so",
	because that is the key to the argument that I am advancing.
	As I have already said, what is right in one place is not necessarily right elsewhere. We have already seen this principle accepted in the Dartmoor statute and the Greenham and Cookham Act. This general approach should cover England and Wales as a whole. The way commons operate varies considerably from place to place. I recall, earlier in the debate in your Lordships' House, the noble Lord, Lord Livsey, telling us that, when he first left Wales to work in the Pennines, he found that the arrangements for dealing with commons were somewhat unfamiliar to him, and were in fact materially different from what he had grown up with in his own country.
	The underlying point behind my amendment is simple, and one the Minister made in a remark earlier this afternoon; and that is, the Bill we are discussing is likely to set the framework for the administration of common land in Britain for the next 40 years. Not many of us will be here in 40 years' time, unlike my noble friend Lord Jopling, who remembers dealing with the 1965 Act. If I am right, and it would be desirable for severance to take place along the lines I have described—I am not necessarily asking your Lordships to agree with me, merely to accept there is a possibility that I might be right—I understand it would not be possible to do much about it under the provisions of the Bill as now drafted. That is precisely the problem that has arisen out of the 1965 Act, which ended up posing a series of questions—not necessarily questions anticipated at the time it was debated—that it has not subsequently been possible to address until now.
	If I am right, to have the kind of provisions that I am advancing on the statue book would be a good thing. If I am not—and my near family can confirm that happens from time to time—the Government simply need not bring in any regulations. Furthermore, given the plurality that exists across commons across England Wales, it may be that in some places the kind of ideas I am advocating are suitable, and in others they may not be. My amendment enables variation across the face of the country.
	The precedent for this in the Bill is the provisions that relate to the leasing of common rights. Those provisions contain an enormous degree of flexibility—quite rightly, I believe, because we do not know precisely the requirements of commons in the years to come. It is right that the government of the day should have wide flexibility in this regard in order to be able to tailor the detail of what is decided in future by regulations to meet the precise requirements of the day.
	This proposal meets the criteria of good government. I have talked this through in general terms with one of the Clerks, and I am advised it should not pose any problems with the Delegated Powers Scrutiny Committee. I do not believe that the Government can lose by accepting my ideas. I beg to move.

Lord Livsey of Talgarth: My Lords, I know that the noble Lord, Lord Inglewood, has done a tremendous amount of work on Amendment No. 6, and he is genuinely concerned that rights of common attached to land owned by others who have dominant holdings with rights on the common can have further land transferred to them on land that has been retained. In proposed new subsection (3A), "particular land" is specified, so it appears that land with rights of common can be transferred within the same common only. As the noble Lord has just said, the wording of the amendment is extremely complex. The effect would be that the owner of the dominant holding with attached common rights could amass a large percentage of the rights on one common. That is a matter of concern. Is it a desirable state of affairs? It is probably not.
	Secondly, although it would ensure that rights of common remain with people who already have common rights on that common, clearly that is a good part of the amendment. What is likely to occur is a market in common rights, which may exclude other commoners from purchasing common rights. I am not sure whether that would be the case, but it is a possibility. That may well be all right in Cumbria, where holdings appear to be being sold, for example, for the farmhouse. The land remains and the common rights remain, and obviously there is concern in that situation about what happens to the common rights. The attached common rights could then be sold to another commoner on the same common, but again it could create a large amount of common rights in the hands of one grazier, for example.
	The fact that it also breaks the link between the holding and the common rights is not popular, particularly in my part of the country. Do we actually need this amendment? We have to ask that question. Clause 9(5) states clearly that the right of common can be severed temporarily for an unspecified period of time if it is being leased or licensed, and indeed it would be subject to regulations and to rules made in relation to the land by a commons association. Can the Minister give us some idea of what force those issues would have in this situation? Is that in fact a good substitute for the amendment proposed by the noble Lord, Lord Inglewood?
	The other factor is that the amendment seeks to introduce greater flexibility. As I have just said, the issues I have just raised could equally fill the gap. We could end up with distortions in common rights holders, if more common rights accrue, but the dominant holding remains the same size. What would happen, for example, in an outbreak of foot and mouth if the sheep are moved on to the land of the dominant holding? That holding, because of its size, might not be able to sustain the additional sheep or other livestock. The noble Earl, Lord Peel, has raised some important points.
	The noble Earl, Lord Caithness, asked me in Committee when I would say something about good husbandry. There is an issue of good husbandry because of the hefted flocks, which are part of the inheritance of upland Britain. The hardiness of those breeds of sheep could be put at risk through supplementary feeding, as the noble Earl, Lord Peel, has said. As for the whole issue of CAP reform, I forecast at the time that in reforming the CAP previously for the sheep regime, farmers would be paid per head for the number of sheep they had, and that that would result in the overstocking of sheep. That is exactly what happened. Decoupling, on the other hand—the new CAP reform, which takes away the support from the headage and puts it into a single farm payment—would probably result in fewer sheep being kept anyway and in less over-grazing as a result. I think that the remarks of the noble Lord, Earl Peel, are extremely wise in these circumstances. He is also right, I think, to say that when the Bill was announced, the suspension of severance had overwhelming support. What we are trying to do with this amendment is to row back There is probably a solution here somewhere. I am sure that we will learn of it in due course. Those are my remarks at the present time.

The Duke of Montrose: My Lords, in moving Amendment No. 11, I shall speak also to Amendment No. 17. This concerns the registration of greens. The amendment deals with a time limit under which that process can take place. The Government have also put time limits in their Amendment No. 16. My point relates to recreational activity taking place over a period of time. Unauthorised or commonplace use of land for sports or pastimes may be ended by a variety of means. The landlord may find out about it and stop it; the land may be sold to someone who does not want the use to continue; or the land may be subject to compulsory purchase. Even if it is not altered, for example, by being ploughed up or built on, the implication is that although the recreational use ceased many years ago, an interested party may apply to have it registered as a town or village green. If the situation is allowed to run on indefinitely, it is a very unfair rule. No one should be subjected to the deprivation of the lawful use of their own property in that way. I am particular concerned about the implications for local authorities which buy land when it becomes available to maintain their land bank or which obtain a compulsory purchase order and put only a portion of the land to permanent use.
	On Amendment No. 17, I understand from the Minister's explanations in Committee that the Government intend that the kind of access prohibition referred to is typified by the closures during the foot and mouth disease outbreak. Unfortunately, this Minister and his team will not always be in a position to interpret that meaning and it will run the risk of unintended consequences. I have in mind access to a town or village green that perhaps has been denied for health and safety reasons where the access is across land that is zoned for commercial, industrial or retail development. What about land that has been acquired using public money for the installation of a major roundabout on a trunk route with a plan to use the excess, when it is no longer needed for construction purposes, for a service area? It is perfect possible that the slow grinding of the legal and planning mills has entailed several years when the area that is known as the town or village green has lain fallow and it has not been possible for people to access it. We considered putting a time limit on "temporary", but decided, first, to test the Government's opinion of the problem. Is the Minister prepared to look at a disregard of a maximum of 12 months or would he prefer a form of words that indicated clearly that, for a disregard to work, the original prohibition must have been intended to be temporary. I beg to move.

Lord Bach: My Lords, perhaps I may speak early in this particular debate for exactly that reason. Amendment No. 11, just moved by the noble Duke, is very closely linked, as he said, with the effects of government Amendments Nos. 14 and 16, which are in turn closely linked with the other amendments that we are proposing to this clause in order to meet some of the points raised in Grand Committee. If the noble Duke will bear with me, I would like to speak first to those government amendments before responding to his, because I think that will help to ensure a better debate. I apologise in advance for the length of my reply, but we are dealing here with an important part of this Bill; namely, greens, and I will be as quick as I can.
	I should like to begin by setting out the context for all of these amendments. Clause 15 replaces the current provisions in the Commons Registration Act 1965 about registration of town or village greens. Like the rest of that Act, those provisions will be repealed by this Bill, once it is enacted.
	The position to date under the 1965 Act, as amended by CROW, has been that if a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on land for at least 20 years, the land may be registered as having become a green.
	Clause 15 is currently in the form in which it was introduced into this House, and broadly reflects the present greens definition under the 1965 Act. But we indicated in Committee that we would consider making various amendments to the clause, and these we have brought forward. Our aim is to deliver a provision that substantially reflects the principles on which greens law has been based across the centuries, but that also reflects the realities of modern living, and resolves some of the difficulties that have arisen under current case law.
	Our starting point in all of this is that where people have genuinely used a local area of land for their recreation as of right—that is, openly, without permission, and without force—and can show that this kind of use has continued for at least 20 years, it should be possible for them to get the land registered as a green. But if one or more of those things cannot be shown, then registration must remain impossible. Noble Lords will appreciate that these principles are firmly rooted in our ancient law of custom.
	I will now explain our reasoning behind each one of our amendments. Amendments Nos. 12 and 13 change Clause 15(2) and (3) in identical ways. The current requirement in those subsections is for the recreational use relied upon by an applicant for registration to be by a significant number of,
	"the inhabitants of any locality, or of any neighbourhood within a locality".
	This would be replaced by a much simpler requirement for that use to be made by a significant number of "local inhabitants". The phrase "local inhabitants" has a clear everyday meaning, and we do not attempt to define it in the Bill.
	What we are seeking to do with these two amendments is to make the position clearer and simpler for all concerned. The current term "locality" that was used in the 1965 Act has been much debated. It has proved too restrictive, because it is taken to refer to a recognised administrative locality, such as a parish. Adding the "neighbourhood" formula in 2000 has not resolved this difficulty. In urban areas in particular, it has proved problematic to show that the use that took place emanated from the right kind of area. The noble Lord, Lord Greaves, spoke of this problem in Grand Committee, and this amendment is the result.
	Essentially, the convoluted formula used on this front to date has failed to convey the crucial point, which is that whatever type of place people live in—urban, rural, large or small—their recreational use of a local area of land should be capable of justifying its registration as a green, so long as three critical conditions are met. First, that their recreational use takes place as of right—I have already summarised what that means; secondly, that it takes place for at least 20 years; and thirdly, that a significant number of people are involved in the recreational use. These are of course already the key tests under the 1965 Act as amended.
	Amendment No. 14 and new subsection (6), as proposed by our Amendment No. 16, relate only to a case where local inhabitants have already used land for recreation as of right for 20 years but where use as of right is then ended by the landowner. Clause 15 allows regulations to prescribe a period of grace after such use has ended, within which an application to register the land as a green may still be made. The underlying principle is that after that period of grace has elapsed it would be too late to apply for registration unless a fresh 20 years' use was subsequently accumulated.
	Instead of our prescribing the period of grace in regulations, the two amendments taken together will set out the position in the Bill. In proposing to do that, we are responding to the views expressed in Committee that the setting of the period is an important policy matter that should be addressed in the Bill rather than in regulations. The effect of our amendments is that the default period of grace would be two years. There would be a transitional arrangement for cases where use as of right had already been ended before commencement; in such a case, the period of grace would be five years.
	Amendment No. 11 argues for the period of grace to be only 12 months, but we do not think that that is long enough. There is a balance to be struck. Yes, we must help landowners who wish to do so to achieve greater clarity about the status of such areas of land without encountering endless delay and uncertainty; but, on the other hand, there needs to be a fair opportunity for an application to be made to register land as a green if it has been used in a qualifying way for at least 20 years but its use is then brought into question.
	In relation to that aim, there is much to be done between the ending of use as of right by the landowner and submitting a viable application on behalf of local people to register the land as a green. First, those people must find out about the existence of that area of law. It is not the sort of knowledge that the average person carries in his head; it is complex and esoteric. They will need to do their research, discover that the registration system exists, get hold of guidance, investigate the detailed criteria for registration and assess the extent to which their own case is likely to meet the criteria for an application.
	If they think in principle that it will, they will then have to set about collecting detailed witness statements testifying to the use that particular local inhabitants have made of the land or know has been made of it by other local people. That is a lengthy process. All the statements and supporting information must then be put together in a proper application in the prescribed form to the commons registration authority.
	In some cases, one year may be long enough for all that to happen; in others, it will certainly not. We must remember that those who must do all that researching, assessing, collecting, co-ordinating, marshalling and submitting are ordinary people with their own lives to lead and day jobs to do. The same is true of the people on whose evidence they will be reliant as they assemble the case for registration. Those things inevitably take considerable time. That is why in our Common Land Policy Statement 2002 we said that we were minded to allow a two-year period of grace for applications. That was a shortening of the five-year period of grace that originally we had in mind, with little opposition, in our consultation paper of 2000. In normal cases, though, we do not think that five years is needed, so long as people become aware promptly of the need to take the kind of action that I have described.
	Under the principle, which I will describe in a moment, that would be set by our Amendment No. 16, challenges by the landowner to long-established as-of-right use would need to take forms such as physical exclusion of people or overt prohibition of access to be effective. So local people would be put on notice that their ability to use the land in future is being placed in jeopardy and that they need to take action to secure registration of the land, if there has been qualifying use and they consider that the various tests are met. So two years should normally be a long enough period of grace in such cases.
	To date, though, the position has been much less clear. There has been uncertainty about what some of the 1965 Act tests require the applicant to prove, with a considerable see-sawing of opinion in case law. Challenges to as-of-right use have been possible through more subtle means—such as simply erecting a welcome notice—that have failed to put local people on notice that that apparently friendly action constituted a threat to their future use of the land. That is why we suggest that a five-year period of grace should apply in any case where 20 years' use as of right was achieved, but then ended before commencement of this clause. This is a purely transitional provision. Within five years of commencement of this clause, a two-year period of grace will always apply when as- of-right use is ended after 20 years or more, and our view is that it will then be sufficient.
	New subsection (5)(b), which is inserted by Amendment No. 16, addresses the concerns expressed in Committee by the noble Duke and the noble Baroness that this matter is too important to be dealt with by regulations. We have decided that they are right on this. So in place of the current subsection (4), we propose the following clear principle: in a case where there has already been 20 years' use as of right, a subsequent grant of permission for local inhabitants to use the land for lawful sports and pastimes should not be regarded as making use as of right cease. Otherwise, it would prevent a successful application to register the land, even though there had been the requisite period and character of use. That would not be fair, especially since local people might not be put on notice until it was too late that their future recreational use of the land was being challenged by such giving of permission.
	Our aim here is simple: everyone should know where they stand if the landowner challenges well established as of right use. Because overt challenges, such as physically excluding people, or erecting prohibition notices, put local people on notice of a threat to their recreational use of the land, they will then be able to take stock and decide whether the character of the use to date is likely to support registration of the land as a green.
	I want to emphasise that nothing in this amendment will prevent a landowner taking clear action to make existing recreational use permissive at any point before 20 years' use as of right has been achieved. So long as the permission given is effectively communicated to users of the land, that would immediately stop the clock running, and rule out a successful application to register the land. It is only once 20 years' use as of right has been achieved in the first place that this amendment would have any effect.
	The other element of Amendment No. 16 is the introduction of new subsections (4) and (5)(a), which respond to the concerns expressed by the noble Lord, Lord Greaves, in Committee. In a situation where local people have used land as of right for lawful sports and pastimes for a period, but not yet for 20 years, it cannot be appropriate for any temporary statutory closure to wipe the slate clean, so that even though use as of right might then continue after the lifting of the statutory closure, the clock would automatically have been reset by the statutory closure to zero years. I emphasise that this would not necessarily be the effect of a statutory closure in any particular case, even if we did not table this amendment. The effect of such a closure at common law would depend on the circumstances, particularly on how long people were excluded for under the statutory closure. But we want to put this matter beyond doubt and make the position consistent.
	New subsection (4) makes it clear that a statutory closure does not of itself curtail any period of as of right use that has been achieved to date: it merely freezes the position as it stood when the closure was imposed. Of course, it remains open to the owner, during or after the period of statutory closure, to end as of right use, and that would then prevent the full 20 years being accumulated, but that is a different issue and is not affected by this amendment.
	New subsection (5)(a) makes it clear that in a case where 20 years' as of right use has already been achieved, an application to register the land remains possible under subsection (2), even if there is a subsequent statutory closure. We think it worth while to spell out that in those circumstances an application could proceed under subsection (2) as if the recreational use continued to the time of application.
	I have taken a long time to explain what we have done to meet some of the concerns raised in Committee. I think it is now appropriate for me to sit down so that the other amendment in this group can be spoken to.

Lord Bach: My Lords, I am grateful for what the noble Lord has said. I know the noble Duke, the Duke of Montrose, has spoken to Amendment No. 17, which is very much in line with Amendment No. 18 of the noble Lord, Lord Greaves. I can briefly answer those now.
	The amendments both amend the last aspect that I spoke to on our Amendment No. 16, regarding statutory closures. Amendment No. 17 seeks to emphasise that a period of statutory closure may be disregarded only for the purposes of determining the period of 20 years if it is a temporary period. Amendment No. 18 in effect questions the wording of our expression,
	"by reason of any enactment",
	and seeks to ensure that the phrase used covers any type of action taken under any enactment to prohibit public access to land. I am happy to reassure both noble Lords that these amendments are, certainly in our view, unnecessary.
	On the point of the noble Duke, the Duke of Montrose, no mischief could flow from our Amendment No. 16 in its present form if a statutory closure of land were permanent rather than temporary. If 20 years' use as of right has not been achieved by the time of statutory closure, it never could be achieved if people could never again use that land. On the other hand, if local inhabitants had already achieved that 20 years' use as of right by the time of the closure, it might be theoretically possible to register the land as green. Even if this happened, however, people would remain unable to use it, because of the permanent statutory closure. So we think that adding the word "temporary"—which noble Lords will understand might prove difficult for the courts to interpret, although they would of course be able to—would not make any practical difference to the provision.
	On the amendment of the noble Lord, Lord Greaves, I am advised that the wording used in our Amendment No. 16—
	"any period during which access to the land was prohibited to members of the public by reason of any enactment"—
	would cover any circumstances in which land was closed to the public, or, indeed, merely to local people, under any statutory power.
	Briefly, government Amendment No. 19, as we heard, would allow for the voluntary registration of land as a green by the landowner. It was prompted in Committee by the noble Lords, Lord Vinson and Lord Greaves, that the owner of any land should be able to register it, voluntarily, as a green. It may come to many noble Lords as a surprise that that was not already possible. It certainly surprised me. It seems a nonsense that a landowner cannot do that at present. We noted the general enthusiasm for this proposal, and have responded. We have avoided complicating with red tape what is essentially a simple concept. We have, however, inserted a basic safeguard at new subsections (8) and (9), that consent is required from any leaseholder or any holder of a financial charge over the land in question. That is no more than common sense.
	Finally, Amendment No. 23 to Clause 16 is consequential to Amendment No. 19, which incorporates some lengthy text that currently sits in Clause 16 into Clause 15(9). Fascinatingly, we are removing that detail from Clause 16 and simply referring back to the wording we are introducing into Clause 15.

The Duke of Montrose: My Lords, I thank Minister for being so detailed. We weigh all his words with great care, because they certainly explained a lot of complicated matters. In looking at this, you think of those who draw up the groupings in this area, and wonder whether we were in fact trying to deal with a group that was almost indigestible. However, the Minister has made a very good job of sorting out the various elements that came through.
	The first element was our amendment about the time that should be available. The Minister gave a full and lucid explanation of why time was needed. He has gone for 24 months and we were talking of 12. I do not think we are going to cause any great fuss over that.
	I am interested in government Amendment No. 16, and will read the Minister's words very carefully. In paragraph 4(b), it says:
	"where permission is granted in respect of use of the land for the purposes of lawful sports and pastimes, the permission is to be disregarded in determining whether persons continue to indulge . . . 'as of right'".
	I think that the Minister explained it, but I shall have to read it again just to be sure. In the absence of my noble friend Lord Vinson, we must certainly thank the Minister for introducing the amendments which corrected the problem that was a great worry to him. It was very good to hear that. The other subject with which we dealt was how one describes people living in an area. We will have to trust the Government's explanation that "local inhabitants" describes everybody whom we wish to see included in the provision. In the mean time, I beg leave to withdraw the amendment.

Lord Greaves: My Lords, it will come as no surprise to anyone that my basic instincts and prejudices are in favour of having as much land as possible registered as commons, access land, village greens and the rest of it. Having said that, I believe that the noble Baroness, Lady Byford, has raised an important underlying question that needs answering. The whole process of identifying and registering greens is very important, and it is vital that people have the right to do it when appropriate—and when the appropriateness is in question. There is no doubt that some people in some places are using the process to frustrate what would otherwise be perfectly legitimate developments, which have gone through all the planning procedures, have planning permission and in general—whether it is right or wrong in an individual case—have been accepted as appropriate by the democratic community processes that take place.
	So there is a problem here. I do not know whether there is an answer to it, or whether it is something that we shall have to live with in the interests of the wider legislation. Like the noble Baroness, I am interested in this question and am interested in what the Minister has to say. I do not believe that the amendment is quite right—in fact, I believe that one or two bits of it are wrong; but there is an issue here which she is right to raise, and we look forward to the Minister's response.

Lord Bach: My Lords, the amendment probes the effect of various possible characteristics of land on its ability to be registered as a green. I am grateful to the noble Baroness for moving it, because this is an important subject.
	I shall briefly discuss each of the scenarios raised by the amendment in order. Subsection (3A)(a) of the amendment is about land lawfully built on or paved before the commencement of the Act. There could be a viable application to register land as a green under this legislation only if a significant number of local inhabitants had actually been using the land as of right for lawful sports and pastimes for at least 20 years. Land covered by a secure building could not be used in this way, so the question of its registration would never arise, unless the building stood within a larger area that someone tried to register. I will deal with that in a moment under paragraph (b). Paths or paved areas within an area of land used for recreation could be used for lawful sports and pastimes in a qualifying way, and such use could legitimately contribute to a claim that land was green. We do not see any reason to exclude such areas arbitrarily from registration.
	Subsection (3A)(b) relates to a situation where perhaps most of an area of land is legitimately the subject of an application for registration, but a small part does not meet the criteria. The short answer is that land cannot be registered unless it meets the criteria. If there were an application to register an area of land and it were clear that most of it had been used in a qualifying way, but parts of it, such as buildings or fenced-off areas, had not, there would be two options for the local authority responsible for determining the application—or rather, the authority, as it may not be a local authority. It could invite the applicant to resubmit the plan of the land covered by the application, including only those parts of the land that had been used in a qualifying way, or, more straightforwardly, the authority could simply decide which parts of the land had been subject to qualifying use and register only those parts as green, leaving the remainder off the register. We consider that it is already possible for authorities to do this, and will remain so under the new Act.
	Subsection (3A)(c) concerns open space that has been lawfully fenced or has signs on or near the land limiting access, where perhaps access has been limited or prohibited for some part of the 20 years. Where the owner of any land has physically prevented people from using it for recreation, or has clearly indicated, by erecting prominent signs or other measures, that recreational use of the land is prohibited or that it takes place by permission only, 20 years' use as of right can never occur in the first place, so a viable application to register the land cannot be made. The same is true where use as of right does take place on land, but from time to time that use is suspended for long enough to prevent any continuous period of 20 years' use as of right ever being accumulated. Again, there could not be a viable application.
	Fencing is not directly relevant to these matters unless it physically prevents people from entering the land. If gates or other entry points are kept locked and the fence is kept in good condition, any trespassing by clambering over the fence or gate would be very unlikely to support a claim of as-of-right use. However, if the field boundaries were broken down or had gaps in them where people could freely enter, or the gates were left open or unlocked, or the rest of the land could be accessed from a public right of way across it, what would count would be the character of any recreational use that people made of the land as a whole. It would be wrong for the Bill to rule out registration of a land as a green simply because it is fenced or has some other formal hard boundary. Even our oldest greens might often offend against that particular criterion.
	Subsection (3B) of the noble Baroness's amendment speaks of urban open space, and suggests that recreational use of it for 20 years should not be able to lead to registration. Urban open space may just as legitimately become a green as village open space. We believe that what counts is the character of any recreational use that occurs, not whether the land is situated in a city. Often it is made clear by notices around such urban open spaces that the land is made available solely by permission of the owner. Many are locked at night, which would be completely inconsistent with any claim that the land has become a green by long use as of right. If land has indeed been used as of right for lawful sports and pastimes by a significant number of local inhabitants for at least 20 years, the fact that it happens to be in an urban area should not prevent its registration as a green. If that were to become the case, our ancient expression "town green" would never have caught on in the first place.
	The noble Baroness asked pertinently about greens' registration affecting affordable housing. We do not think it would. The criteria for registration, as I have already pointed out, are very tight indeed. As I say, the only cases that can succeed are those where local inhabitants have used land for lawful sports and pastimes for more than 20 years without false permission or secrecy. If such use has been permissive, there are no grounds for registration and the specific and limited periods of grace we are introducing after which registration will no longer be possible without the passage of another 20 years will help achieve clarity and certainty about the status. In a case where all the rigorous tests are met, it would not normally be appropriate to develop the land even for social housing. If in a particular case an area of green were the only suitable location for such development, it would be possible to apply for a statutory exchange between that and other land so that the green was created elsewhere and the current green developed.
	The noble Baroness also asked me whether we had consulted with officials from the Office of the Deputy Prime Minister. We consulted fully with them regarding the planning applications of greens registration as part of the extensive consultations we undertook on our various consultation papers as part of the preparations for the Bill. I have tried to explain where we stand on these important issues.

Baroness Byford: My Lords, I am grateful to the Minister for that full reply to a complex question. I shall read what he said carefully. He said that the two departments consulted with each other. However, where will the balance be drawn? If no alternative land is offered, which will take priority? Who will decide that, or will the matter be returned to the Secretary of State for consultation? I am not sure where the one overlaps with the other.

The Duke of Montrose: My Lords, I am grateful to the Minister for explaining the further depths of the government amendments. We are very interested in the outcome. I would comment that of course one welcomes Amendment No. 22, to leave out subsection (8), which seems unnecessary given the provisions in subsection (4). However, Amendment No. 21 seems to be lacking in one regard. The "appropriate national authority", which could be CCW or the Secretary of State, should "have particular regard" only to the interests of those mentioned in paragraphs (a) to (c) of subsection (6). Landowners are included only under paragraph (a) as,
	"persons having rights in relation to . . . the release land".
	Even there, it is the commoners' rights which are to have particular attention paid to them. There seems to be no special protection for the rights of the landowner on replacement land. Though that is another issue, there seems to be some imbalance here which suggests to us that some will be considered more fairly than others. In the mean time, however, we welcome these amendments as they stand.

Lord Greaves: My Lords, the noble Lord, Lord Greaves, may well withdraw his amendment, but whether he is satisfied with the Government's reply is a different matter. I am grateful for what the Government have said and in particular for their Amendment No. 21. That is more than a minor, technical matter. The balance of the wording is significantly different and improved. It refers to patches of land that are to be deregistered which are less than 200 square metres. However, I do not think that Amendment No. 21 covers the point that I am making in Amendment No. 20, which refers to all deregistrations and replacements—not just those of less than 200 square metres.
	The noble Baroness says that we can be assured over the question of whether the quality and size of the patch, and so on, are sufficient to warrant deregistration of the original release land. She says we can be assured that that will happen. I would rather have things in the Bill. By the time this legislation is replaced by the next Commons Bill, most of us will probably not be on this Earth. Who knows who will be administering such legislation at that time? So the assurance that everything will be okay on the day is not necessarily adequate. This is something to which I may well want to return. In the mean time, I may engage the Minister in correspondence about it. Having said that, I beg leave to withdraw the amendment.

Baroness Farrington of Ribbleton: moved Amendments Nos. 21 to 23:
	Page 9, line 12, at end insert—
	"(6A) The appropriate national authority shall in a case where—
	(a) the release land is not more than 200 square metres in area, and
	(b) the application does not include a proposal under subsection (3),
	have particular regard under subsection (6) to the extent to which the absence of such a proposal is prejudicial to the interests specified in paragraphs (a) to (c) of that subsection."
	Page 9, line 20, leave out subsection (8).
	Page 9, leave out lines 28 to 39 and insert ""relevant charge" and "relevant leaseholder" have the meanings given by section 15(9)."
	On Question, amendments agreed to.

Lord Livsey of Talgarth: My Lords, I shall speak to Amendment No. 24 and Amendment No. 32. We debated some aspects of the issue in Committee. I have brought forward the amendment because of some remarks made by Ministers about what they hoped to do when there was poor communication between the commons registration authorities and the Land Registry. This is really a way at looking at means of trying to improve it in the context of electronic registration being on its way. It is already quite well advanced in some cases but not, sadly, in others.
	Amendment No. 24 relates to changes in the ownership of common land. The amendment states:
	"When an electronic register under section 25 is complete—
	(a) each commons registration authority shall inform Her Majesty's Land Registry of all common land in its area".
	That does not appear to have been happening too well at present. The amendment goes on to state:
	"(b) the land registry shall notify the relevant commons association of any proposal to exchange ownership of common land".
	Now that really should be a routine operation. If necessary, it can be carried out by a commons registration authority.
	Paragraph (a) of the amendment will ensure that the commons registration authority informs the Land Registry of all common land in its area. The Land Registry will then have the necessary information. By the same token, once it has this information, it is surely duty-bound to inform the relevant commons association of any exchange of ownership of common land. That has not been happening, and there are problems.
	As I said in Committee, some commons associations are never informed that the land over which they have common rights has been sold. In some circumstances, the new owner is unaware that any common rights are there at all. The Land Registry does not always co-operate with the commons registration authorities or the commons associations. If communications are opened up as prescribed in the amendment, we feel that many problems will be overcome.
	In Committee it was acknowledged that,
	"the system of notification is not 100 per cent effective"—
	and that,
	"the Land Registry does not always know when an application for first registration of title relates to registered common land"—[Official Report, 1/11/05; col. GC 42.].
	I shall not quote any more, but that underlines the problem. There was a commitment from the Minister to try to do something about the problem. I should like to probe the Government on what ideas they have about that and whether the amendment, as currently drafted, is helpful in that respect.
	Amendment No. 32 refers to registers being kept by the relevant commons registration authorities until they have been converted into electronic form. That is one point.
	The second point of Amendment No. 32 is:
	"The definitive copy of the electronic registers shall be kept by the relevant commons registration authority".
	It is vital that the commons registration authority can keep registers, as it operates as a reference point for all commons associations, commoners and owners in its area. People visit the commons registration authority and they communicate with it to check up on factual information. Indeed, I was recently in the commons registration authority in Powys, which keeps the records of 174 commons. A fantastic amount of useful information is held there both in files and in electronic form.
	The conversion into electronic registers could take some considerable time—that is probably an understatement. Some commons registration authorities are advanced and others are very slow, so it could take many years. Even after many years, when all the registers will have been converted into electronic form, it is still crucial that a definitive copy is available in the offices of the commons registration authority. The amendment has been put forward because of the concerns of commons registration authorities, which are anxious that they are able to have definitive copies of commons registers in their offices that are available for interested parties to examine. I beg to move.

Baroness Byford: My Lords, I shall speak to Amendment No. 33, which is grouped with this amendment and also refers to electronic registers. My amendment asks that,
	"Regulations under subsection (1) which require the keeping of electronic registers will be funded centrally".
	At government level, the computerisation of records is clearly very difficult and in many cases is disastrous. The computerisation of systems appears to be fraught with cost overruns, major errors and customer distress. I am not qualified to even hazard a guess about why that should be so, but it has been happening with sufficient regularity for me to be concerned enough to ask the Government to be required to pay the council tax payer for this service, as the commons registration officers are based in local authorities.
	A commons registration authority may decide that putting its system on the computer would be cost-effective or that some other reason, such as chronic staff shortage, dictates such a move. In that case, I should have no difficulty with the idea that it should foot the bill. However, if the Government issued instructions and then went on, as this clause allows, to specify the nuts and bolts of the methods that the authority should use, the Government should at least pay for the conversion costs. It is in the light of past experience of the cost of computerisation of records that I have tabled the amendment.

Baroness Farrington of Ribbleton: I begin by speaking to Amendment No. 24. We are unable to support the noble Lord's amendment. The noble Earl, Lord Peel, put it very succinctly in Grand Committee, when he said:
	"I fail to see the difference between the sale of common land and the sale of ordinary land."—[Official Report, 1/11/05; col. GC41.]
	I agree with him. The function of Her Majesty's Land Registry is to register the sale of land, not to act as an early warning system. Where someone has a legitimate interest in land, such as the interest of an estranged spouse in the matrimonial home, then it is possible to register a caution in order to receive notice of an application affecting the register—but that is not the case here. The sale of a common to another party can have no legal impact on the commoners' entitlement to exercise their common rights. The noble Lord's amendment implies that he would like the Land Registry to go further than merely giving notice; it refers to a "proposal" for a change in ownership.
	The register of title, held by the Land Registry, is open to all, so if a commons association becomes aware of a change in ownership, and is not immediately able to establish who has bought the land, it may apply to the Land Registry in writing or online for details of the new registered owner. It is a very simple process. I know that the noble Lord, Lord Livsey, has concerns about common land being bought and sold without local people being aware of what is happening, but that is a consequence of having an open market for land in this country. We are taking steps to integrate the existing statutory pre-purchase commons search system into the existing, more widely used, conveyancing search forms, and we hope that this will mean that buyers of common land are far less likely to claim ignorance of the special status of the land that they have acquired. I hope that will be of some comfort to the noble Lord.
	It will come as no surprise to the noble Lord if I say that Amendment No. 32 has precisely the same effect as Clause 1. Every registration authority is to keep the registers whether they are in paper or electronic form. Moreover, we have provided in Clause 20 for a right for the public to inspect the registers. That right will endure even where the registers have been digitised, although regulations may make specific provision as to how the right is to be exercised where the legal data is held in electronic form. For example, the regulations may provide that a person is to be able to view the data on a screen, or that a print-out must be provided of relevant extracts.
	We had a good debate in Grand Committee on Amendment No. 33 on whether the Secretary of State should have a power or a duty to make regulations under Clause 25 to enable the conversion of commons registers to an electronic form. My noble friend explained then that regulations should not be our first priority, but that we were determined to get on with the task so that registration authorities could begin to convert their registers.
	Were we to have imposed a duty on registration authorities to convert their registers, then funding for that purpose would have followed through the usual channels via the revenue support grant, which would have been a rather blunt method of targeting funding. Given our plans to roll out the implementation of Part 1 of the Bill on a regional basis, we expect that registration authorities will also wish to co-ordinate plans to digitise their registers with the regional commencement. For example, it may be sensible for an authority to undergo conversion to electronic format before embarking on the transitional period under Schedule 2, but the timing of the transitional period may vary between authorities and between regions by as much as several years. I reassure the noble Baroness that funding for this purpose, as with funding for the transitional period itself, will best be provided, at least initially, on a targeted basis. Some authorities have already made good progress in establishing electronic registers, even though those cannot at present have the same force of law as the paper registers.
	In the longer term, should we find that some authorities are being left behind in an increasingly universal era of e-government, we have conferred a power in Clause 25(1) to require authorities to keep their registers in an electronic form, and the imposition of such a duty would require commensurate funding at that stage. I hope that I have been able to answer the points raised by noble Lords on this group of amendment and they will not seek to press them.

Baroness Farrington of Ribbleton: My Lords, Amendment No. 26, in Clause 19(7), enables application to the High Court to rectify an entry in the register where that entry has been procured by fraud, and it would be "fair" to make the rectification. Government Amendment 26 provides instead that the rectification should be made only if it would be "just" to do so.
	Our Amendment No. 27 responds to one spoken to in Grand Committee by my noble friend Lord Williams of Elvel. He questioned whether the use of the word "fair" in subsection (7) is entirely apt. There was perhaps some concern that the test of whether an amendment was fair would be a difficult call, although I believe that my noble friend was also concerned that the court could seek to interfere in a decision made in good faith by the registration authority.
	On the latter point, I hope I can set my noble friend's mind at rest: an application can be made under subsection (7) only where fraud is proven, and that will be a very difficult thing to prove. We believe it unlikely that many, if any, applications will come forward under this provision, but conclude that some protection is necessary if cases of fraud do arise. Even if fraud is proven, my noble friend was good enough to acknowledge in Grand Committee that the court should have some discretion as to whether an amendment is made.
	Our amendment will provide that should the court be satisfied that it would be "just" to make the amendment it could do so. That is the language used in an almost identical provision in Section 14 of the Commons Registration Act 1965. I hope that the noble Lords will agree that the provision in the 1965 Act has stood the test of time, and that it would be sensible to use the same form of words here. I beg to move.

Baroness Byford: My Lords, I rise to move Amendment No. 28 and to speak to Amendment Nos. 30 and 80. These deal with the rectification of mistakes under Schedule 1, which we believe should be time-limited to get them corrected. In Amendment No. 28, we ask that the date should be by 28 June 2015, which would be the completion of the Act. Amendment No. 30 proposes a date three years earlier, which would cover the transitional period. These applications for rights of way—byways and byways open to all traffic, and so on—have, in many counties, formed a sizeable backlog, as the Minister will know with regard to the NERC Bill. Each one has to be investigated and proved before it may be added to a definitive map. The problem is particularly acute in many towns and cities where there was no definitive map already in existence, so the process has had to start from the beginning. Had there been a shorter cut-off date imposed from the beginning, there would have been fewer applications and the backlog would have been smaller.
	The particular problems surrounding mechanically propelled vehicles on byways open to all traffic, have caused a special government inquiry and the imposition of an earlier than planned closure date. We do not feel that commons registration authorities, who are after all basically the same officials, should face similar problems as small armies of dedicated people search through parish and town records to unearth anything that could be quoted as evidence of previous use of land by the general public. Nor should there be any way in which they can be sued for running out of time to handle applications. Furthermore, those with an interest in open land should not have the possibility of such applications hanging over their heads for years ahead. Those are the reasons for the amendments. I beg to move.

Lord Greaves: My Lords, I do not suppose that I am only the person to have had a briefing from the RSPB about the registration dates and transitional periods. There are questions to which it would be helpful to have answers from the Minister. The RSPB's concern is that, unless there are cut-off dates by which the registers can be brought up to date, it will not be possible to initiate the formation of statutory commons associations, so commoners will continue to find it difficult to access agri-environment payments. That was an issue that I had not understood or heard discussed previously, and it would be useful for the Minister to indicate whether that is the case. When we discussed it previously, I was not of the opinion that setting up commons associations could not proceed fairly quickly from the passing of the Bill, and that it had to wait until the transition period of updating the registers was completed. The RSPB is under the impression that that would be the case, which would put a new complexion on the way in which the Bill is brought into operation. It would be helpful if the Minister could tell us that the RSPB is wrong; if it is not, we have some more work to do.

Baroness Byford: My Lords, I spoke to this amendment earlier. I listened very carefully to what the Minister said. As far as I am aware, there is nothing on the face of the Bill that defines that the funding will go to local authorities. Therefore, I beg leave to test the opinion of the House.

Resolved in the negative, and amendment disagreed to accordingly.
	Clause 27 [Procedure for establishment]:

Lord Bach: My Lords, I shall respond as briefly as I can. This is an important topic and it has arisen in a number of ways during the course of proceedings on the Bill—at Second Reading and in Committee too. Clause 27 sets out the procedure for establishment of a commons association. It requires the national authority to be satisfied that there is substantial support for making an order, while having particular regard to representations from three categories of persons: first, landowners and others who have a legal interest in the common; secondly, common rights holders; and thirdly, persons with statutory functions relating to the maintenance or management of the common. These are all persons with a direct interest in the common, either through ownership, a property right, or statutory functions relating to the land. We do not think local authority support is required as they do not have rights in the land, nor the necessary level of interest in the land necessarily for their concerns to be given particular priority.
	We have received consistent support for our approach to the procedure for establishment of an association from a wide range of interests. I know that the House will forgive me if I quote from the recent National Farmer's Union parliamentary briefing, which I am sure has wide circulation. The briefing states:
	"The minister can hear any representations on the subject, including the views of local councillors, but—in our view rightly—is obliged to have particular regard under subsection (5) to those with an interest in the land, to those who have rights of common, and to persons who have statutory functions concerned with the maintenance and management of the land. We are content that as drafted the Bill strikes the correct balance".
	It appears that the support we have for our approach to establishing a commons association—as set out in Clause 27—is both substantial and powerful. That does not mean to say that we are right, but it is substantial and powerful.
	Noble Lords will be surprised to hear that we agree with the NFU here. There is nothing to prevent local authorities making representations about a draft order, but we do not believe their majority support should be the determining factor in deciding whether an association should be established. Local councillors are unlikely to have rights in the common and their knowledge and understanding of commons management may be low—certainly when I was a local authority councillor my knowledge and understanding of commons management was very low indeed. I hope that it is slightly different now, but I am not sure. This amendment would effectively remove the most important people from the decision making procedure—those with a direct interest in terms of rights or ownership. These are the interests that will operate the association.
	Majority support from local councillors might appear a good way of ensuring a democratic decision but such support will be worthless if the owner and the common right holders are not supportive.
	There may be situations where local authorities have a real interest in a common; for example, they may undertake management activities on an unclaimed common or be involved in a scheme of management under the Commons Act 1899. In such a situation, the views of a local authority would undoubtedly be given particular weight. But, even here, management of the common will require more than the support of local councillors. Reliance on majority support from one body of persons would not be enough to guarantee the effectiveness of the association where there are a number of different interests.
	We are aware that measuring the level of support for the establishment of a commons association will sometimes not be an easy task. Ensuring that there is majority support—which implies an objective, measurable test of support—will be almost impossible because rights in common land vary in value and nature, and are shared between different users. Each common will have a unique set of active users and inactive or dormant holders of rights. When considering the establishment of a commons association, a series of questions must be answered: for example, who in the local area should be involved in deciding whether a commons association is to be established?
	To some extent, the functions to be given to the commons association may determine how some of those questions are answered. We could say, on a common that is agriculturally active, that only active graziers should be involved in deciding whether to establish an association and support measured through a majority vote. But that would remove any representation from the owner or other legal interests who share the common and it is seldom straightforward to differentiate between active and inactive users of a common. I could give further examples but I do not think that I need to.
	There are other important interests in a common, such as the owner, whose views may be overridden if some measure of majority support is used to establish an association. Even if the owner is agriculturally active, with a high level of interest in managing the common, he could always be outnumbered by those holding common rights. In another situation, the owner may actively oppose the formation of an association despite overwhelming support from the rights holders. The views of the owner and other minority interests could be lost if the criteria for deciding whether to establish an association is based on the concept of majority support from any particular category of interest in a common. What is required is a judgment, a weighing of the facts in each individual case—an examination of which interests support the establishment of an association, what functions they want to give that body, which interests oppose establishment and why.
	We should not expect overwhelming support for a commons association as there will always be those who oppose such a body—those who believe that they gain from having an unconstrained "freedom in the commons" to do as they like. We should expect to create associations in the face of some opposition. This is why we have decided that the criterion for establishing an association should be "substantial support". The implication of using that term is that the support is more than sufficient to do the job. It is existing, not illusory, support. It is not a bare majority, but it does not have to be total or overwhelming support; it allows for some opposition to occur. It allows the strength of arguments to be gauged, both in support and in opposition to an association. Such evidence can then be used in the decision or used to modify the draft establishment order in some way.
	I was going to finish by quoting the National Farmers' Union, but I shall not.

Lord Greaves: My Lords, the amendment probes a matter that I was surprised we did not discuss in more detail in Grand Committee. In all the excitement about how commons associations will be set up, run and financed, we missed it. It is the question of the relationship between commons associations and SSSIs, and the position on the commons in relation to SSSIs. The position at the moment is that in England about half the SSSIs on commons—which are a high proportion of SSSIs in the country—are not in a favourable condition, and it is thought that the position may be much worse in Wales. Section 28G bodies under the Wildlife and Countryside Act 1981, as amended, have a duty to further the conservation enhancement of the flora and fauna on SSSIs. The Bill states that commons associations are not 28G bodies on the grounds that such status might be a burden and could discourage the setting up of commons associations. That may well be true but, no doubt, there are also other things that might also discourage them.
	The purpose of moving the amendment is to ask the Government how they see the future management of SSSIs on commons. What processes will take place that will result in the 50 per cent figure being reduced to something much more reasonable and the Government meeting their own targets on bringing SSSIs into good condition? In particular, if commons associations are not to be 28G authorities, what is their role and how will they be involved? If a site is designated as an SSSI because of its vegetation, it is difficult to see that the body that is tasked with managing the vegetation does not have a substantial role to play in enhancing and maintaining the ecological conservation status of the SSSI. My noble friend Lord Livsey will speak to the other amendment in this group. I beg to move.

Lord Bach: Commons associations are to be established primarily to improve the management of agricultural activities and vegetation on common land. A commons association will be made up of those with rights or other interests in the common who will volunteer their time to ensure the association operates effectively. Those people who will be out on the common, day in, day out, are not paid employees of any organisation, but commoners exercising their rights and owners managing their land. So having an association as a Section 28G body would place a significant new burden on such persons. In their daily activities, where commons have been designated as SSSIs, they would have to,
	"further the conservation and enhancement of the flora, fauna or geological or physiographical features",
	of the land, with no compensation for the added time, effort and expense of doing so.
	Section 28G bodies are not eligible for agri-environment funding. Such funding is available only to bodies that are not already required to carry out the activities for which an agri-environment grant is payable. To put it perhaps more simply, if a commons association was a Section 28G body, it would have no entitlement to agri-environment funding.
	I know that this is a probing amendment, but if it were agreed to, we believe that no commons associations would be formed where common land is designated as a site of special scientific interest. That would be a great shame. One of the driving forces to establish an association will be to make it easier for those concerned to agree a long-term funding package to secure better management on a common. If this amendment were to be agreed to, it would seriously compromise our ability to assist in bringing SSSIs on common land into favourable condition in order to meet our PSA target for such sites.
	We do not think giving commons associations the status of a Section 28G body would help to improve the nature conservation value of designated common land. Ironically, it is likely to have the opposite effect, and result in the unfavourable condition of SSSIs on common land continuing.
	Regarding Amendment No. 36, spoken to by the noble Lord, Lord Livsey, commons associations will be given a limited range of functions related to the management of common rights, vegetation and agricultural activities. They will not be expected to manage the numerous other activities that might take place on common land, such as recreational activities or organised events. Associations will largely be made up of local graziers, owners and other interests with a limited range of skills and expertise. They will often not be in a position to provide the level of advice needed to fulfil the role of a statutory consultee.
	A matter that affects the management of a common could cover an enormous variety of activities, from the trivial to the significant. It would be difficult for the members of an association to prepare reasoned arguments for all matters that might affect a common in some way, especially if its functions are related only to management of agricultural activities.
	It is not clear what the significance of any response from an association might be. Without some indication of the weight to be attached to such a response, an association is unlikely to act, even if given the status. In most cases where an activity might significantly affect the management of a common—for example, the siting of wind turbines—it is inconceivable that a commons association would not be asked for its views. In such a situation, there is also likely to be an environmental impact assessment or a public inquiry at which an association's views could be heard.
	While we see commons associations as becoming a more powerful voice for commons, we do not see the need for making them a statutory consultee and giving them equal weighting. That will only increase the administrative burdens of the association, will not assist in improving the management of a common and will not be a true voice of all interests. We want to avoid that. The noble Baroness, Lady Miller, asked about marine matters and flooding. In practice, commons associations will of course be consulted. We may not have answered all of the concerns raised by the noble Baroness in Grand Committee. If that is so, we will write with a fuller explanation of our position.

Baroness Byford: My Lords, I understand that the Government may be considering Amendment No. 37 but it is important that I set out the background for it. There are some very real issues that I had not appreciated in Committee. In our earlier consideration of this Bill, the Minister promised to consider issuing some draft statutory instruments, which we received. But, so far, we obviously have not discussed them. The standard constitution defines a commoner as,
	"a person entitled to exercise a right of common over any land in respect of which a commons association is established".
	A Member is defined as a person,
	"standing elected, appointed or co-opted",
	to an association. An association may levy subscriptions on, or demand contributions from, commoners.
	The second statutory instrument enables a mythical association and, among other edicts, states:
	"The Association shall consist of not less than ten and not more than twelve members".
	The first members shall be appointed using the good offices of the returning officer appointed by the Secretary of State.
	I am concerned at the intentions revealed by these documents. While I know that they are in draft, the standard terms will have to be accepted by both Houses before they can become law and those applying to individual associations will be governed by the negative procedure. I am, however, doubtful about the following points and would be grateful for clarification; first, the desirability of depriving commoners of their title unless their common has an association. The third-day debate in Committee elicited from the Minister that the Government have no set ideas on how many commons associations will be in existence five years from the passing of this Bill, nor of the proportion of commons that will be covered by the associations, as set out at col. GC 92 of the Official Report on 2 November 2005. Clearly, after the passing of the Bill, commoners who do not belong to a statutory association will be commoners no longer.
	Secondly, I doubt the wisdom of charging a subscription and then denying a membership. Will the Minister explain the thinking that lies behind this draft rule? I nearly said "daft rule", but I mean "draft". Will he or she—I am not sure who the Minister is—comment on the implication that, if there only 10 to 12 members and they run the association, they will not be accountable to anyone?
	I wish to bring to attention of the House a little problem that I have with this Bill and the draft statutory instruments. The Bill allows for a commons association to be established by order. Does this mean that a currently established association will automatically receive an order without having to go through the procedure under Clause 27? Clause 27(2) says "must".
	The standard terms define a commoner as someone "affiliated" to a statutory association. What are commoners who have no such group? The test statutory instrument defines, in effect, a "member" as one of a select band. The Bill and the statutory instrument make it crystal clear that the commons associations will be able to charge fees, subscriptions and whatever you will on commoners who will not, however, be members.
	Clause 37 allows for the national authority to deem an association ineffective and to allow the,
	"transfer of rights, property and liabilities"
	to Natural England or the CCW. Does that mean that the commoners who are not members of an association will have to pay fees to exercise their rights of common, and may face losing those rights to Natural England?
	The more I look at this, the more worried I get. Thus I wanted to fully explain to the Minister some of the concerns that we have with this provision. I beg to move.

Baroness Farrington of Ribbleton: My Lords, I will reply to the specific amendment and what it does. The word "members" is a reference to those persons who are elected to the governing body of an association. A commons association is a little bit like a local authority where the local people elect representatives to the governing body of the authority and then effectively agree to abide by the decisions of that body. The majority of those participating in a commons association will appoint persons to a governing body or management board to represent their interests and make rules which will be binding on all those using the commons.
	We have not used the word "officers" to refer to those appointed to the governing body of a commons association, as use of this word has been reserved for those who have particular roles given to them in relation to the governing body, such as the treasurer, secretary or chairman. Paragraph 10 of the draft standard constitution, which we provided to Peers this autumn, makes provision for the appointment of such officers.
	Those who are entitled to appoint the members of an association will be identified in the establishment order. They are likely to consist of owners, commoners, those with other interests in the common such as sporting rights, and possibly bodies that have statutory management functions on a common. In order to identify who is eligible to appoint a member of an association, the returning officer will draw up a list of all those eligible to participate. The association may decide that all those eligible to participate in the appointment of members to the governing body must—and the noble Baroness recognised this point—pay an annual subscription to the association. This is similar to the way some existing voluntary commons associations operate, where payment of a small annual subscription makes a person eligible to vote at general meetings of the association.
	The definition of "commoner" in this standard constitution is just for the purposes of that instrument, not for general application. The standard constitution only has any relevance to commoners or commons for which an association is established. The drafting does not mean that people with rights over other commons will cease to be commoners.
	Our amendment in response to the Delegated Powers and Regulatory Reform Committee is reflected in Clause 56(3). The noble Baroness, Lady Byford, expressed concerns about the draft establishment order and the desirability of depriving commoners of their rights if there is no association. That is not what the draft order does. It is not the case that commoners not in the association will not be commoners. I can reassure the noble Baroness that where no commons association is formed, nothing changes.
	I understand and agree that the words used in this clause may be confusing to people who are more familiar with other associations in which members are all those who have paid their dues or subscriptions, and the officers elected to manage the association. We will consider more carefully the terminology used for different elements of commons associations and provide any necessary amendments at Third Reading.
	I am sorry for going at such speed. I understand that there is an agreement, in the interests of the House, that we complete this part of the Bill by 7.30 pm. I will, of course, write to the noble Baroness, should I have failed to cover all the points to her satisfaction.

Lord Lucas: My Lords, with the leave of the House I shall speak briefly in the gap. I look forward to Committee. I support the Bill completely, but I want to ensure that the way in which Clause 1 is implemented and explained will give the people whom the Government aim to help the confidence that they need.
	Undertaking something in which you believe that there is the sort of risk that the Bill sets out to tackle is rather like standing on the edge of a river feeling thirsty but being worried that there might be a crocodile in it. Serious efforts need to be made to calm people's fears; it needs to be possible to show that this particular stretch of the river is safe and that what people are setting out to do is not attended with dangers. I have been the subject of lobbying by the Association of Personal Injury Lawyers—APIL—as I suspect other Members have. The examples that that body has produced seem to illustrate perfectly the problems rather than their proposed solution. It is terribly difficult for people to evaluate legal language when they are setting out to take kids on a trip or deciding whether to use a council-owned paddling pool. We simply cannot confront people with those sort of legalised decisions if we are to hope that the Bill will have the effect that Clause 1 sets out to achieve.
	I shall table a couple of amendments really just for the sake of being able to discuss these matters in detail and how the provisions will be practically implemented. I have a particular interest in exclusion notices; that is an important tool for someone setting out knowing that they are going to be safe when they do something. It should be possible for an authority, a council, a school or whatever body to exclude liability when the risks that the consumer is being asked to undertake and evaluate are risks that you would ordinarily expect such a consumer to be able to evaluate and take. When it is a question of whether to use a paddling pool in a park, for example, it seems reasonable to put a notice beside it saying that there is no supervision, that the water is changed only once a day, that using the pool carries those and other risks and that if you use to pool you do so at your own risk. That should be absolute; there should be no question but that such a reasonable notice gave the protection that the council wished it to have—otherwise providing these facilities becomes extremely difficult.
	Clearly there is a border that needs to be policed, but you need to know that the first few yards are safe. If you wade in the river and go out to far, there may be a crocodile in the deep water, but you need to know that you can go a reasonable distance. Excluding liability—and using words that can exclude liability—are a very important mechanism for an authority in dealing with parents or children. When a school acts in loco parentis, it should be absolutely clear that the school is not required to do anything that a reasonable parent would not be expected to do—that there is no added burden on these poor school teachers, who have to corral a number of disobedient kids, or that they should somehow be expected to be supermen and superwomen and go beyond what would ordinarily be expected if you sent your kid out on a day's expedition with a friend. To get to that position of rationality, when we all know what risks we are taking, accept them as part of our daily lives and take responsibility for them ourselves, rather than running to place those risks on other people, is an objective that I shall pursue in Committee.

House adjourned at twenty-seven minutes before nine o'clock.
	Monday, 28 November 2005.